1 OCGA § 49-4-146.1 (b) (2) makes it unlawful fo r any pers on or Medic aid

provider“know ingly a

nd willful ly to a ccept medical as sistance p ayments t o whic h he or she is not

entitled or

in an amount greater than that to which he or she is entitled or kno win gly a nd w ill ful ly to falsify any report or do cument require d under this article.”

2 Although

the case below

is p end ing , maki ng t he i nst ant ord er in terl ocu tor y, “thepresent practice is that a direct appeal from an order deny ing appeal bond should be considere d on the merits.” (Citation omit ted.) Wade v. State , 218 Ga. App. 377, 378 (2) (461 SE2d 314) (1995). FIRST DIVISION PHIPPS , C. J., ELLINGTON, P. J., and MCMILLIA N, J.
N O TICE: Motions for reconsideration must be p hy sically received

in our cl erk’s offi ce within ten days of the date of decision to be deemed timely filed.

http:/ /www .gaappeal s.us/rul es/ September 9, 201 4



## In the Court of Appeals of Georgia
A14A1957 . MALLOY v. THE STATE. JE-071C E LLI NGTON , Presiding Judge. In the Super

ior Court o f DeKalb County , a jur y found Dr. Tyrone

Malloy guilty of two counts of Medica

id fraud 1 and the court sentencedhim to serve fou r yea rs in prison. Prior

to filing his motion for a new trial, Malloy sought an appeal bond, which the court deni ed follow ing a hear ing. Mall oy appe als from the order denyin g bond, 23 Because Malloy ’s convic tion for fr aud is not among those offenses listed in OCGA § 17-6-1 (g) , he is el igible for an appeal

bond. 2 contending

that he pre sented suff

icient evi dence dem

onstrating t

hat he wa s not a fli gh t ri sk . Fo r th e fo ll owi ng rea so ns , we aff irm. “Thereis no constitutional right to bond pendin g appeal. Whether to grant an appe al bond to eligible[ 3 ] felon y defendants lies within thesound discre tion o f th e convicting

court, and we w ill not distur b the court ’s deci sion absent a flagrant abuse of discretio n.” (Footnotes omitted.) Luke v. State , 282 Ga. App. 749, 750 (639 SE 2d 645) (2006). In exercising its discr et ion, the tr ial court m

ust answe r four que stions: (1) whether

there is a substanti al risk the defendant

will flee; (2) whether there is a substantial risk the d efendant will pose a danger to o thers in the comm unity; ( 3) whethe

r there i s a substanti al risk the defen dant will intimi date witnesse s or otherwise interf ere wit h the adm

ini st ration of justice; and

(4) whe ther it

appears t he appeal is frivolou s or taken o nly for the purpo se of dela

y. A n affirm ative answ er to any

one of thes e questions will support the trial court’ s decision to deny a n appeal bon d. (Footnotes omitted.) Abernathy v. State , 245 Ga. App. 857, 857-858 (539 SE2d 203) (2000); see

also Birge v. State , 238 Ga. 88 (23 0 SE2d 895 ) (1976).4 The trial court is no t require d to ma ke findings of

fact suppo rting its decision. Rather, the court i s only

required to affir mativ ely f

ind in its ord er the exi stence of one of the four factors outlined above. See Moore v. State , 151 Ga. App. at 414-415. 3 The d efendant bears the burden of persuading the court to grant an appeal bond, and the court should not grant bo nd “unl ess the def endant pre sents sufficient information, evidence, or argum ent to convin ce the tr

ial cou rt that none

of the four factors applies.” (Footnote omitted.) Abernathy v. St ate , 245 Ga. App. at 858. See also Moorev. State , 151 Ga. App. 413, 414 (260 SE2d 350) (1979) (accord). In addition to a

ny evidence offered

by the defendant , “t

he trial j udge m ay con sider all the evidence adduced at the trial

that is per

tinent to [t

he appeal bond] d etermination[ .] ” (Punctuation and footnote omitted.) Willifo rd v. State , 218 Ga. App. 522, 523 (462 SE 2d 632) (1995) . “W hether w e agree with [the trial cour t’s] findings and conclusions is not controlling.” (Citations and punct uatio n omitted.) Hardy v. State , 192 Ga. App. 860, 861 (2) (38 6 SE2d 731) (1989) (physical precedent only). Thus, as long as there is s ome e vidence to support the trial cour t’s dec ision, 4 we will not disturb it. See Abernathy v. State , 245 Ga. App. at 857-858.5 The court did no t address a ny of the other f

actors re levant to th e decision to deny an appeal bond. Consequently, whether the c our t’s dec ision also m ay be sustainable

on another ground is not p roperly before t his Court. 4 In this case, the court denied Mall oy’ s request f or bond by

affirm ativ ely fin ding thatthere was a substantial risk that Malloy would flee. 5 Although Malloy presented evidence of his com

munity ties, the trial cour

t stated tha

t it was no t persuade d b y Mallo y’s assuranc es. Given that Mall oy wa s convicted of Medic aid f

rau d, a cri me involvingdeceit a

nd the thef

t of public f

unds, the c ourt’s d

istr us t of Ma lloy’s
assurances is r easona

bly bas ed in reco rd evidenc e. Also, at sentenc ing, Mall oy showedno acceptance of the jury’ s verdict and little understanding that it warranted criminalpu ni sh ment , st ati ng “I would not ha ve sacrif iced all of the things th at I have done if I had int ent to defr aud Medica id. I feel that my contributi on of what

I felt a doctor shoul d be and shoul d do was w hat I’v e accom

plished in 37 yea rs. In no way
was I trying to do something that was ille gal.” The record also contains evidence that Malloy is older, wealthy, and has fam ily and business connections outside of Georgia,
c onnections that m ay pro vide him refuge or

aid. Given that som

e record evidenc e supports the court’ s decision to deny Malloy an appeal bond, we cannot say that the trial c ourt manifestly abused its discretion. See Willifo rd v. State , 218 Ga. App. at 524.5

2. Malloy ’s motion to expe dite this appeal is denied as moot. Judgment affirmed. Phipps, C. J., concurs. McMilli an, J., concurs in judgment only.